International law under siege

The powerful cite international law to weaker states but blithely ignore it when it comes in their way.

Brahma Chellaney, Mint, April 22, 2014

The Russian-U.S. proxy war over Ukraine, while threatening to unleash a new cold war, serves as a reminder that power usually trumps international law. Russia’s muscular riposte, including annexing Crimea, to the U.S.-supported putsch in Kiev that deposed Ukraine’s constitutional order highlights major powers’ unilateralist approach to international law.

Anarchy-in-pakistan2The only mechanism to enforce international law is the UN Security Council (UNSC), whose permanent members are notorious for breaking international law. Is it thus any surprise that international law is applied only when it suits the interests of the strong states? The powerful cite international law to weaker states but blithely ignore it when it comes in their way.

Russian President Vladimir Putin’s action in annexing Crimea violated Ukraine’s territorial integrity, even though it followed a referendum in that historically Russian region, where the majority of residents are indisputably with Russia. The annexation represents a clear breach of international law.

This, however, cannot obscure the fact that the U.S. and NATO have repeatedly shown contempt for international law.  The list is long just for the past 15 years — the bombing of Serbia, the separation of Kosovo from Serbia, the invasions of Afghanistan and Iraq without UNSC mandate, the overthrow of Muammar Gaddafi’s regime through aerial bombardment, the aiding of a still-raging bloody insurrection in Syria, and renditions and torture of terror suspects. The U.S. National Security Agency’s Orwellian surveillance programme mocks international law.

In February, Washington openly backed the violent street protesters — some armed with guns and Molotov cocktails — who toppled Ukraine’s democratically elected president, Viktor Yanukovych. This has set a dangerous precedent. No democracy can be safe if armed provocateurs are allowed to spearhead street protests against the constitutional authority.

The Ukraine case indeed illustrates the international law of convenience. Putin, for example, has cynically justified his Crimea takeover in the name of “responsibility to protect,” the very moral (not legal) principle U.S. President Barack Obama invoked to rationalize Gaddafi’s overthrow.

The Ukraine crisis is actually a geopolitical windfall for another power that serves as a prime example of a unilateralist approach to international relations — China, still hewing to Mao Zedong’s belief that “power grows out of the barrel of a gun.” China’s growing geopolitical heft has emboldened its muscle-flexing and territorial nibbling in Asia. China rejects some of the same treaties the U.S. declines to join, including the Convention on the Law of the Non-Navigational Uses of International Watercourses — the first law that lays down rules on the shared resources of transnational rivers, lakes and aquifers.

China has established a hydro-supremacy unparalleled in the world by annexing the starting places of Asia’s major international rivers — the Tibetan plateau and Xinjiang — and working to reengineer their cross-border flows. Yet China — the source of transboundary-river flows to more countries than any other hydro-hegemon — rejects the very concept of water sharing and refuses to enter into water treaties with its neighbours.

With both Obama and Putin now wooing China, the likely big winner from the turn of events is the country that has been relentlessly expanding its borders ever since it came under Communist rule in 1949. That China continues to press steadily outward on its borders was illustrated by its 2012 capture of the Scarborough Shoal, located within the Philippines’ exclusive economic zone, and by its more recent establishment of an air-defence zone extending to islands controlled by Japan and South Korea.

China’s geopolitical gains will solidify if the U.S. jettisons — as appears likely — its post-Cold War policy of seeking to influence Russia’s conduct through engagement and integration. The U.S. is closing the door to Russian accession to the Organization for Economic Cooperation and Development (OECD) and effectively ousting Russia from the G8 by making it the G7 again — an action that can only accelerate that institution’s creeping irrelevance in international relations.

India, by contrast, could be a loser in a second cold war that re-divides states along a bipolar axis. India also lost out in the first cold war because of its reluctance to take sides. Although India has progressed from doctrinaire nonalignment to geopolitical pragmatism, it sees itself as a bridge between East and West, not as a partisan.

Given the innately self-calculating and self-aggrandizing human nature, strong nations have always sought to gain dominance over the weak. The advent of new technologies and reduced transportation costs has made the world increasingly interdependent. Yet the world has remained the same in one aspect — the stronger still dominate the weaker.

When the U.S. lost a 1984 International Court of Justice case filed by Nicaragua, it blocked the ruling’s implementation. But when Japan recently lost its Antarctic whaling case, it quickly agreed to comply with the ruling. This illustrates the difference between a big and a not-so-big power.

Power respects strength, while the weak remain meek. Had Crimea been seized by a smaller power, the U.S. by now would have assembled a “coalition of the willing” to launch a military attack on the occupier. But because the occupier in this case is a country armed with intercontinental-range nuclear weapons, Obama, despite his tough talk, quickly ruled out any U.S. military involvement.

The major powers assert one set of rules for themselves and a different set for other states, as if international law were only for the weak.

Brahma Chellaney is a professor at the Centre for Policy Research.

(c) Mint, 2014.